State of TEXAS, Plaintiff, v. UNITED STATES of America, and Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Defendants, and Wendy Davis, et al., Defendant-Intervenors.
Civil Action No. 11-1303 (RMC)
United States District Court, District of Columbia.
Signed June 18, 2014
27 F. Supp. 3d 1
ROSEMARY M. COLLYER, United States District Judge
Accordingly, it is hereby
ORDERED that, by July 18, 2014, the defendant shall SHOW CAUSE in writing why [Dkt. No. 139] defendant‘s motion to enforce should not be denied for lack of jurisdiction; and it is
FURTHER ORDERED that the plaintiff‘s deadline to respond to defendant‘s motion to enforce is hereby STAYED pending further order of the Court.
SO ORDERED.
agreement, where district court issued an oral order dismissing case, but where neither a separate order of dismissal nor a joint stipulation of dismissal was filed on the docket).
Bryan L. Sells, Daniel J. Freeman, Janie Allison Sitton, Michelle Andrea McLeod, Olimpia E. Michel, Thornton
John M. Devaney, Perkins Coie LLP, Mark A. Posner, Lawyers’ Committee for Civil Rights, John Kent Tanner, Karen M. Soares, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC, Joseph Gerald Hebert, Law Office Of Joseph Gerald Hebert, Alexandria, VA, Chad W. Dunn, Brazil & Dunn, Houston, TX, Joseph Gerald Hebert, Law Office of Joseph Gerald Hebert, Alexandria, VA, Joaquin Avila, Law Office Of Joaquin G. Avila, Kevin J. Hamilton, Marc Erik Elias, Perkins Coie, LLP, Seattle, WA, Jose Garza, Law Office of Jose Garza, San Antonio, TX, Renea Hicks, Law Offices of Max Renea Hicks, Gary L. Bledsoe, Law Office of Gary L. Bledsoe and Associates, Robert Stephen Notzon, Austin, TX, Jorge Martin Castillo, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY, Karolina J. Lyznik, Marisa Bono, Mexican American Legal Defense & Educational Fund, San Antonio, TX, Allison Jean Riggs, Southern Coalition for Social Justice, Durham, NC, for Defendant-Intervenors.
OPINION
ROSEMARY M. COLLYER, United States District Judge
This matter presents a case study in how not to respond to a motion for attorney fees and costs. At issue is whether defendant-intervenors, who prevailed in Voting Rights Act litigation before a three judge panel, may recoup attorney fees and costs even though the Supreme Court vacated that opinion in light of the Supreme Court‘s subsequent decision in a different lawsuit that declared a section of the Voting Rights Act unconstitutional. A quick search of the Federal Reporter reveals the complexity of this narrow question. Yet, rather than engage the fee applicants, Plaintiff Texas basically ignores the arguments supporting an award of fees and costs. In a three-page filing entitled “Advisory,” Texas trumpets the Supreme Court‘s decision, expresses indignation at having to respond at all, and presumes that the motion for attorney fees is so frivolous that Texas need not provide further briefing in opposition unless requested. Such an opposition is insufficient in this jurisdiction. Circuit precedent and the Local Rules of this Court provide that the failure to respond to an opposing party‘s arguments results in waiver as to the unaddressed contentions, and the Court finds that Texas‘s “Advisory” presents no opposition on the applicable law. Accordingly, the Court will award the requested fees and costs.
I. FACTS
Following the 2010 Census, Texas redrew its State and congressional voting districts to account for its growing population and new congressional seats, see
Properly convened as a three judge panel,
After denying Texas‘s motion for summary judgment and ordering expedited discovery, the three judge Court conducted a bench trial over a two-week period in January 2012. The United States and Defendant-Intervenors argued against preclearance, presenting evidence at trial and submitting post-trial briefing. Texas, 887 F.Supp.2d at 139. The opposition to the Plans, however, was not uniform. For instance, the United States, the Texas Latino Redistricting Task Force, and the Gonzales Intervenors all presented expert reports and testimonies concerning retrogression. Id. at 141. Only the Davis Intervenors, Texas NAACP Intervenors, the League of Urban Latin American Citizens, and the Texas Legislative Black Caucus argued that Plan S 148 should be denied preclearance due to the retrogressive manner in which the Texas Legislature had drawn State Senate District 10 (Fort Worth).3 See id. at 162. Texas presented its own expert testimony and argued vigorously for approval of all three Plans. The upshot was a “voluminous trial record” that fleshed out the controversies. Id. at 139.
The three judges of this Court were not the only judicial officers wrestling with redistricting Plans C185, H283, and S148. Several parties, including many of the Defendant-Intervenors in the instant litigation, had instituted suit against Texas in the Western District of Texas under Sec-
On August 28, 2012, this Court denied Texas‘s motion for declaratory judgment, finding that Plans C 185, S 148, and H283 did not merit preclearance because Texas had not carried its burden of showing that those Plans did “not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group under [S]ection 5 of [VRA].” See Texas, 887 F.Supp.2d at 178. Specifically, the Court found that Texas had failed to overcome evidence of the retrogressive effect of Plans C185 and H283 and evidence of discriminatory purpose in enacting Plan C185 and Senate District 10 in Plan S148. Id. at 162, 178. Throughout its Opinion, this Court made clear that it was relying on the evidence offered at trial by all parties, including Defendant-Intervenors.
On October 19, 2012, Texas appealed this Court‘s decision to the Supreme Court. Thereafter, between June 21 and 23, 2013, the Texas Legislature repealed and replaced Plans C185, H283, and S148 with new maps. The Texas Legislature passed three separate statutes that redrew the State‘s voting districts in a manner that closely mirrored the second set of interim plans ordered by the Perez Court. See Davis Mot. for Fees [Dkt. 256] at 10. The Governor of Texas signed these new plans into law on June 26, 2013.
On June 25, 2013, after Texas legislative action and one day before the Governor signed the three new redistricting plans into law, the Supreme Court issued Shelby County v. Holder, U.S. , 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). Shelby County involved a constitutional challenge to Section 4 of the VRA. The Supreme Court held that because the coverage formula in Section 4(b) was based on stale data and distinguished among the States in an unconstitutional manner, it “can no longer be used as a basis for subjecting jurisdictions to preclearance.” Id. at 2631. Then, on June 27, 2013, one day after Texas replaced Plans C1 85, S 148, and H283, the Supreme Court vacated and remanded this Court‘s opinion that had denied preclearance to Texas. The Davis Intervenors had immediately moved in the Supreme Court for dismissal of Texas‘s appeal as moot in light of the formal adoption of new voting plans by the Texas Legislature, and the Supreme Court instructed this Court to consider both Shelby County and the Davis Intervenors’ “suggestion of mootness” on remand. Texas, 133 S.Ct. at 2885.
The Davis Intervenors, Gonzales Intervenors, and Texas State Conference of NAACP Branches (collectively, Fee Applicants) now move for attorney fees and costs.5 They contend that they are prevailing parties and are entitled to fees and costs under the VRA. The Davis Intervenors seek a total reimbursement of $466,680.36, see Davis Mot. for Fees at 2, the Gonzales Intervenors seek a total reimbursement of $597,715.60, see Gonzales Mot. for Fees [Dkt. 257] at 2, and the Texas State Conference of NAACP Branches seeks a total reimbursement of $32,374.05, see Texas State Conference of NAACP Branches Mot. for Fees [Dkt. 258] at 1.
Texas has not filed a brief in opposition to the pending motions. Instead, Texas filed a three-page “Advisory” that begins and ends with Shelby County. See Advisory [Dkt. 259]. Texas writes that, in light of Shelby County, the State was wrongly subjected to preclearance in the first place. As a result, Texas contends, the participation of Defendant-Intervenors in this VRA litigation only served to “aggravat[e] the unconstitutional burden of preclearance and delay[] [Texas‘s] reapportionment efforts following the 2010 Census.”
II. ANALYSIS
The merits of the instant litigation were tried to a three judge Court under the VRA, and that Court fulfilled its mandate when it entered its judgment. Section 5 of the VRA requires matters to be “heard and determined by a court of three judges” only to the extent required by
Turning to the first principles of attorney fee awards, parties in the United States ordinarily bear their own attorney fees regardless of the outcome of the litigation. Fresh Kist Produce, LLC v. Choi Corp., 362 F.Supp.2d 118, 125 (D.D.C.2005) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep‘t of Health & Human Res., 532 U.S. 598, 602-03, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), superseded in part by statute,
If a party establishes that it is entitled to attorney fees, then the question becomes whether the fees sought are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789, 795-805, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002). The standard metric for determining the reasonableness of a fee request is the “lodestar method.”6 As discussed infra, such a calculation “produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010).
A. Fee Applicants’ Entitlement to Fees and Costs
Fee Applicants contend that statutory fee shifting provisions apply here. Specifically, they seek attorney fees under
Requests for attorney fees pursuant to
1. Prevailing Party Precedent
The phrase “prevailing party” is a legal term of art, Buckhannon, 532 U.S. at 603, which has been addressed by the Supreme Court in multiple decisions. See, e.g., Tex. State Teachers Ass‘n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) (“A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendent lite or at the conclusion of the litigation.“); Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) (“[P]laintiff [must] receive at least some relief on the merits of his claim before he can be said to prevail.“). The Supreme Court most recently grappled with the concept in Buckhannon. There, interpreting the fee-shifting provisions of the Fair Housing Amendments Act of 1988,
Buckhannon excluded from its definition instances in which the objective of a lawsuit is achieved because a defendant voluntarily changes its conduct. Terming it the “catalyst theory” of fees recovery, id. at 601, the Supreme Court reasoned that such a basis for recovery is not connected to the clear meaning of “prevailing party,”
Since Buckhannon, the D.C. Circuit has adopted a three-part test for adjudicating prevailing-party status. Prevailing-party status turns on whether there is “(1) ... a court-ordered change in the legal relationship of the parties; (2) [a] judgment ... in favor of the party seeking the fees; and (3) [a] judicial pronouncement ... accompanied by judicial relief.”9 Green Aviation Mgmt. Co. v. FAA, 676 F.3d 200, 203 (D.C.Cir.2012) (internal quotation marks and citation omitted). Markedly, only the latter two prongs are relevant when a defendant is the party seeking attorney fees. Id. at 204.
Buckhannon expressly recognized only two appropriate bases for awarding attorney fees—judgments on the merits and settlements enforced through consent decrees. Buckhannon, 532 U.S. at 605 (“We have only awarded attorney‘s fees where the plaintiff has received a judgment on the merits, or obtained a court-ordered consent decree.” (internal citations omitted)). Prevailing-party status in this jurisdiction, however, is not so limited. Under the D.C. Circuit‘s construction of Buckhannon, a litigant in this jurisdiction need only establish that s/he received “some form of judicial relief, not necessarily a court-ordered consent decree or a judgment on the merits.” Turner v. Nat‘l Transp. Safety Bd., 608 F.3d 12, 15 (D.C.Cir.2010). The D.C. Circuit has recognized that, under certain circumstances, prevailing-party status may result from a favorable jurisdictional ruling, a grant of preliminary injunction, or even a judicially-sanctioned stipulation.
2. Fee Applicants’ Arguments
Although each Fee Applicant moves separately for attorney fees, their arguments for prevailing-party status largely overlap and can be summarized.10 Fee Applicants state that they joined the litigation to oppose preclearance for Plans C185, H283, and/or S148. This Court first denied preclearance to Texas on summary judgment, with the result that the District Court in the Western District of Texas imposed interim maps that re-drew some voting districts. Following a trial before this Court at which all parties presented demonstrative evidence, expert reports, and testimony, the Court found that Plans C 185, H283, and S 148 violated the VRA. It, therefore, denied preclearance. Fee Applicants argue that this result was enshrined into law in June 2013, when Texas repealed Plans C 185, H283, and S 148 and enacted new redistricting plans that were substantially similar to the interim maps drawn by the three judge panel in Texas. Because Texas never used Plans C185, H283, or S148 for any actual voting (primary or general election) and all Plans were rejected by the Court and replaced by Texas, Fee Applicants contend that they achieved not just some judicial relief, but rather, all of the relief that they sought.
Outraged that Fee Applicants would dare to request fees, Texas responds with its Advisory. Texas posits that the three judge Court‘s denial of preclearance is “[t]he only basis upon which the intervenors could conceivably ... claim[] prevailing-party status,” Advisory at 2, but that the decision does not support a fee award because it “was vacated on appeal,”
3. Fee Applicants Are Prevailing Parties
The Advisory filed by Texas has narrowed the dispute greatly. Texas rests entirely on Shelby County. Its sole contention is that the Supreme Court, as a matter of fact and law, erased the three judge Court‘s opinion, and, consequently, Fee Applicants’ successes before that Court. In essence, Texas believes that Shelby County establishes that the entire-
In fixating on Shelby County, Texas blinds itself to the procedures of this Court. The Local Rules of the Court provide that:
Within 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the court may treat the motion as conceded.
Texas does not dispute that Fee Applicants were prevailing parties prior to the Supreme Court‘s issuance of Shelby County and subsequent vacatur and remand of this Court‘s opinion denying preclearance. Notably, this Circuit has found that parties who intervene as defendants in VRA litigation are eligible for fee awards,11 see Medina Cnty., 683 F.2d at
Having conceded that Fee Applicants were prevailing parties prior to Shelby County, Texas‘s only argument against an award of fees and costs here is that Shelby County effectively stripped Fee Applicants of their victory. Texas‘s opposition, however, overlooks National Black Police Association v. District of Columbia Board of Elections & Ethics, 168 F.3d 525 (D.C.Cir.1999) and Grano v. Barry, 783 F.2d 1104 (D.C.Cir.1986). In National Black Police Association, various plaintiffs sought an injunction against campaign contribution limits for certain local elections. 168 F.3d at 526-27. The district court enjoined the initiative as violative of the First Amendment, and fifty-two days later, the D.C. City Council repealed the challenged contribution limits. Id. at 527. On appeal, the D.C. Circuit deemed the matter moot in light of the Council‘s repeal and vacated the district court‘s judgment. The district court then awarded attorney fees to plaintiffs, holding that “despite the eventual mootness of the case ... the injunction changed the legal relationship of the parties, and contributors were able to make substantial contributions that otherwise would not have been legal.” Id. The D.C. Circuit agreed. “The fact that the case was moot by the time of the appeal [did] not alter the fact that the injunction altered the legal relationship between the parties when it was issued....” Id. at 528. It was of no moment to the D.C. Circuit that the plaintiffs would have realized their goal fifty-two days later when the Council repealed the initiative. “The plaintiffs secured a real-world vindication of their First Amendment rights” regardless of subsequent events. Id. Accordingly, the “district court properly found that the plaintiffs were prevailing parties because at the time judgment was entered, the injunction altered the legal relationship between the parties.” Id. at 529.
Similarly, in Grano, plaintiffs obtained an injunction that delayed the demolition of an historical site pending a public referendum. 783 F.2d at 1107-08. The D.C. Circuit affirmed the district court‘s finding that the plaintiffs were prevailing parties despite the fact that the vote to preserve the site was invalidated. Id. at 1109. The Circuit reasoned that the public referendum would have had no chance to preserve the building at all if the building were razed before the election. In other words, the Grano plaintiffs “faced two hurdles[:] [t]hey successfully surmounted the first by holding off the demolition until the election ... [and] [a]lthough their goal of ensuring that the result of the election would have legal effect was subsequently blocked in another court, they nonetheless succeeded in the aspect of their claims that brought them into federal court....” Id. Significantly, the D.C. Circuit subsequently has observed that “[t]he injunction [in Grano] produced a lasting change in the parties’ legal circumstances and gave the plaintiffs the precise relief that they had sought.” Thomas v. Nat‘l Sci. Found., 330 F.3d 486, 493 (D.C.Cir.2003).
Here, Texas does not dispute that this Court‘s denial of preclearance altered the legal relationship between it and Fee
This result is not inconsistent with the analysis in Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Lewis involved two Florida statutes that prohibited an out-of-state holding company from operating an industrial savings bank in Florida. Continental Bank challenged the statutes as unconstitutional under the Commerce Clause,
On appeal, the Eleventh Circuit found that the case was not moot, affirmed the lower court decision on different grounds, and remanded for further analysis on the fee petition. Id. at 476, 110 S.Ct. 1249. Shortly before the Eleventh Circuit decision issued, however, Congress adopted the
The Supreme Court granted certiorari to Florida and held that the federal legislation had mooted the case. Id. at 477-80, 110 S.Ct. 1249. It found that Continental
As the Ninth Circuit has since observed, Lewis “did not hold that a party automatically loses its prevailing party status when the appeal becomes moot before a Court of Appeals reaches final judgment.” UFO Chuting, 508 F.3d at 1197 n. 8. “Rather, [it] ... reaffirmed established case law requiring a prevailing party to obtain a direct and substantial benefit.” Id. Fee Applicants obtained a direct and substantial benefit as well: redistricting Plans C185, H283, and S148 were never implemented; Texas repealed the challenged Plans and adopted new plans; and the Governor formally executed the legislation replacing the Plans one day before the Supreme Court vacated and remanded this Court‘s denial of preclearance. Given this timing of events, Shelby County did not strip Defendant-Intervenors of their rights to seek fees. This conclusion is consistent with Lewis and follows the law of the D.C. Circuit and other courts of appeals that have found that subsequent mootness does not necessarily obviate a litigant‘s prevailing-party status.
4. Absence of Special Circumstances
Having found Fee Applicants are prevailing parties, the Court turns to whether special circumstances would render an award unjust. This question requires an evaluation of several factors. One consideration is “whether the net result is [such] ... that it would be stretching the imagination to consider the result a ‘victory’ in the sense of vindicating the rights of the fee claimants.” Medina Cnty., 683 F.2d at 442-43. “If the victory can fairly be said to be only a pyrrhic one, then an award of fees would presumably be inappropriate.” Id. at 443. A related consideration is the impact that the party seeking attorney fees had on the litigation. Where fee applicants are intervenors, a court considers whether they timely intervened,12 whether their participation was necessary to protect their interests and further the policies embodied in the relevant statutory scheme, Miller v. Staats, 706 F.2d 336, 343 (D.C.Cir.1983), and whether they had an “independent impact on the particular outcome of the case,” Medina Cnty., 683 F.2d at 443.
The “special circumstances” exception to an award of fees is a gloss on
Fee Applicants set forth in detail the efforts that they undertook to oppose Plans C185, H283, and S148. They explain the necessity of their intervention, describe the resources that they expended at every stage in the proceedings, and recount the witnesses and evidence that they presented at trial. Texas makes no effort to rebut Fee Applicants’ facts or arguments. Accordingly, the Court finds no special circumstances and that Texas concedes there are no special circumstances that would render an award of attorney fees to Fee Applicants unjust.13 See CSX Transp., Inc., 82 F.3d at 482-83; Hopkins, 238 F.Supp.2d at 178.
B. Reasonableness of Defendant-Intervenors’ Request
In this Circuit, “[t]he usual method of calculating reasonable attorney‘s fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C.Cir.1998). A fee applicant bears the burden of demonstrating that the claimed rate and number of hours are reasonable. Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995).
Fee applications must “include contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of the work with supporting documents, if any.” In re Donovan, 877 F.2d 982, 994 (D.C.Cir. 1989). A fee applicant may satisfy its burden of demonstrating that its time was reasonably spent by submitting “‘sufficiently detailed information about the hours logged and the work done’ that permits the district court to ‘make an independent determination whether or not the hours claimed are justified.‘” Cobell v. Norton, 231 F.Supp.2d 295, 305 (D.D.C.2002) (quoting Nat‘l Ass‘n of Concerned Veterans v. Sec‘y of Def., 675 F.2d 1319, 1327 (D.C.Cir.1982)). The applicant need not, however, “present the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney.” Id. at 306. Billing descriptions can be read in context, with clarification coming from surrounding billing entries as well as the docket. Heard v. District of Columbia, Civ. No. 02-296, 2006 WL 2568013, at *14-15 (D.D.C. Sept. 5, 2006).
The Court need not tarry long on the reasonableness of the fees sought because Texas has presented no argument contesting any aspect of them. Fee Applicants have submitted sufficiently detailed information about the hours their attorneys spent working on this matter as well as the specific work performed. See Davis Mot. for Fees at 24-35;
The Court likewise easily finds that Fee Applicants are entitled to recover the litigation costs that they request. See Davis Mot. for Fees at 36-37;
III. CONCLUSION
The Advisory submitted by the State of Texas fails to recognize that the limited holding of Shelby County did not resolve the issues here. The Advisory entirely ignores the legal arguments raised by Fee Applicants concerning their rights as prevailing parties. Confident in its position, Texas informs the Court that it will not further “respond unless requested to do so.” Advisory at 3. The onus, however, is not on the Court to request opposition from a sophisticated party before rendering its decision. Texas has had every chance to oppose the fees and costs that Fee Applicants seek since the applications. It instead opted to file a three-page Advisory that ignored every argument of Fee Applicants except the applicability of Shelby County.
In accord with the precedents of this Circuit and others, the Court finds that Fee Applicants are prevailing parties before this Court and eligible to recover attorney fees and costs. The Court further finds that the fees and costs they seek are uncontested and reasonable. The Court will award $466,680.36 to the Davis Intervenors, $597,715.60 to the Gonzales Intervenors, and $32,374.05 to the Texas State Conference of NAACP Branches. A memorializing Order accompanies this Opinion.
ROSEMARY M. COLLYER
United States District Judge